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Viar v. Colvin

United States District Court, W.D. Virginia, Roanoke Division

September 2, 2016

EDWINA BASHAM VIAR, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

          MEMORANDUM OPINION

          Hon. Glen E. Conrad Chief United States District Judge.

         Plaintiff has filed this action challenging the final decision of the Commissioner of Social Security denying plaintiffs claims for disability insurance benefits and supplemental security income benefits under the Social Security Act, as amended, 42 U.S.C. §§ 416(i) and 423, and 42 U.S.C. § 1381 et sea., respectively. Jurisdiction of this court is pursuant to 42 U.S.C. § 405(g) and 42 U.S.C. § 13 83(c)(3). As reflected by the memoranda and argument submitted by the parties, the issues now before the court are whether the Commissioner's final decision is supported by substantial evidence, or whether there is "good cause" to necessitate remanding the case to the Commissioner for further consideration. See 42 U.S.C. § 405(g).

         The plaintiff, Edwina Basham Viar, was born on August 17, 1962. While Mrs. Viar did not complete high school, she has earned a GED. Plaintiff has worked as a sales clerk, cashier supervisor, stock clerk, and sales representative. She also worked for a short period of time as a hotel maid. Mrs. Viar last worked in 2012. On November 16, 2012, plaintiff filed applications for disability insurance benefits and supplemental security income benefits. Mrs. Viar alleged that she became disabled for all forms of substantial gainful employment on August 21, 2012 due to musculoskeletal problems, depression, anxiety, and hip problems. Plaintiff now maintains that she has remained disabled to the present time. As to her application for disability insurance benefits, the record reveals that Mrs. Viar met the insured status requirements of the Act through the fourth quarter of 2014, but not thereafter. See gen,, 42 U.S.C. §§ 416(i) and 423(a). Consequently, plaintiff is entitled to disability insurance benefits only if she has established that she became disabled for all forms of substantial gainful employment on or before December 31, 2014. See gen,, 42 U.S.C. § 423(a).

         Mrs. Viar's applications were denied upon initial consideration and reconsideration. She then requested and received a de novo hearing and review before an Administrative Law Judge. In an opinion dated January 26, 2015, the Law Judge also determined that plaintiff is not disabled. The Law Judge found that Mrs. Viar suffers from several severe impairments, including osteoarthritis; hepatitis C; chronic generalized pain disorder/fibromyalgia; major depression; and anxiety disorder. (TR 20). Because of these problems, the Law Judge ruled that plaintiff is disabled for all her past relevant work roles. (TR 30). However, the Law Judge held that Mrs. Viar retains sufficient functional capacity for a limited range of light exertional activity. The Law Judge assessed plaintiffs residual functional capacity as follows:

After careful consideration of the entire record, the undersigned finds that the claimant has the residual functional capacity to perform light work, with a sit/stand option every 30 minutes while remaining on task, occasional balancing, stooping, kneeling, crouching, crawling, and climbing of ramps/stairs, no climbing of ladders/ropes/scaffolds, frequent handling and fingering, frequent exposure to pulmonary irritants, including fumes, odors, dust, and gas, occasional exposure to hazardous conditions, including unprotected heights and moving machinery and occasional exposure to vibration. She is also able to perform simple routine tasks with no interaction with the general public.

(TR 22). Given such a residual functional capacity, and after considering plaintiffs age, education, and prior work experience, as well as testimony from a vocational expert, the Law Judge found that Mrs. Viar retains sufficient functional capacity to perform several specific light work roles existing in significant number in the national economy. (TR 31-32). The Law Judge identified potential jobs as a small parts assembler, laundry folder, and inspector/ hand packager. (TR 32). Accordingly, the Law Judge ultimately concluded that Mrs. Viar is not disabled, and that she is not entitled to benefits under either federal program. See gen., 20 C.F.R. §§ 404.1520(g) and 416.920(g). While plaintiff filed an administrative appeal, the Law Judge's opinion was adopted as the final decision of the Commissioner by the Social Security Administration's Appeals Council. Having now exhausted all available administrative remedies, Mrs. Viar has appealed to this court.

         While plaintiff may be disabled for certain forms of employment, the crucial factual determination is whether plaintiff is disabled for all forms of substantial gainful employment. See 42 U.S.C. §§ 423(d)(2) and 1382c(a). There are four elements of proof which must be considered in making such an analysis. These elements are summarized as follows: (1) objective medical facts and clinical findings; (2) the opinions and conclusions of treating physicians; (3) subjective evidence of physical manifestations of impairments, as described through a claimant's testimony; and (4) the claimant's education, vocational history, residual skills, and age. Vitek v. Finch, 438 F.2d 1157, 1159-60 (4th Cir. 1971); Underwood v. Ribicoff. 298 F.2d 850, 851 (4th Cir. 1962).

         After a review of the record in this case, the court is unable to conclude that the Commissioner's final decision is supported by substantial evidence. As for plaintiffs physical problems, the court believes that the evidence supports the Law Judge's determination that Mrs. Viar retains sufficient functional capacity to perform light exertional activities. In this respect, while Mrs. Viar has a history of multiple musculoskeletal problems, several of her treating physicians have noted no significant reduction in range of motion, and no clinical findings of severe mechanical defect. For the most part, Mrs. Viar's doctors have prescribed conservative measures for pain control. In short, the court finds that the medical record fully supports the Law Judge's determination that plaintiffs physical problems do not prevent performance of lighter work activities, as long as plaintiff is given an option to sit or stand as necessary.

         The difficulty in this case concerns the Law Judge's treatment of plaintiff s mental health issues. Mrs. Viar has a history of psychiatric hospitalizations, and she has been treated for depression and anxiety over a period of several years. More recently, her family physician referred her to Dr. Suzanna C. Jamison, a psychiatrist. Dr. Jamison saw Mrs. Viar on three occasions in 2013. Dr. Jamison reported symptoms of anxiety, depression, and panic attacks, though the psychiatrist attributed much of plaintiffs difficulty to situational issues. (TR 765, 781). On September 9, 2014, Dr. Jamison completed a mental residual functional capacity questionnaire. Stated succinctly, Dr. Jamison's findings indicate that Mrs. Viar is unable to engage in any reasonable work activity. (TR 816-20).

         The Administrative Law Judge ultimately concluded that plaintiffs mental health problems are not so severe as to prevent performance of simple, routine tasks with no interaction with the general public. The Law Judge specifically determined to accord Dr. Jamison's findings and opinions "little weight, " noting that Dr. Jamison had only seen Mrs. Viar on three occasions and that Dr. Jamison's clinical findings were not consistent with her work-related assessment. (TR 29). Instead, the Law Judge decided to accord "great weight" to the report of a consultative psychologist, Dr. David Leen. (TR29). Dr. Leen conducted a clinical psychological evaluation in February 2013, several weeks before Mrs. Viar was first seen by Dr. Jamison. Thus, Dr. Leen did not have the opportunity to consider Dr. Jamison's psychiatric findings and diagnoses. Remarkably, while the Law Judge criticized Dr. Jamison's report because the psychiatrist saw Mr. Viar on only three occasions, Dr. Leen saw plaintiff only on a single occasion. In any event, Dr. Leen ultimately diagnosed depressive disorder and anxiety disorder. (TR 721). Dr. Leen opined that plaintiff is capable of performing simple, repetitive work activities in a timely and appropriate manner. (TR 721).

         The Administrative Law Judge also determined to give "partial weight" to reports from several nonexamining state agency physicians and psychologists. (TR 30). The record reveals that two state agency psychologists completed record reviews. Dr. Richard Luck submitted a mental residual functional capacity assessment on March 5, 2013. Dr. Luck relied heavily on Dr. Leen's clinical findings. Dr. Luck opined that while plaintiff experiences no limitations in her ability to carry out short and simple instructions, she is moderately limited in her capacity to discharge detailed instructions and to maintain attention and concentration for extended periods. (TR 68). Another state agency psychologist, Dr. David Niemeier, submitted a mental residual functional capacity assessment on November 1, 2013. (TR 48-50). In contrast to Dr. Luck's assessment, Dr. Niemeier noted a greater variety of work-related issues. While Dr. Niemeier felt that Mrs. Viar possessed the ability to carry out "very short and simple instructions, " he noted moderate limitations in plaintiffs capacity to carry out detailed instructions, maintain attention/concentration, perform activities within a schedule, maintain regular attendance and punctuality, and engage in an ordinary routine without special supervision. (TR 49). Relying on the reports from the state agency psychologists, the Administrative Law Judge also found that Mrs. Viar experiences moderate difficulties as a result of her emotional problems. The Law Judge commented as follows:

With regard to concentration, persistence or pace, the claimant has moderate difficulties. She is able to handle a savings account and use a checkbook/money order, but has difficulty following instructions, handling stress and changes in a routine.

(TR22).

         While the court finds no real fault with the Law Judge's assessment of the mental health evidence, the court believes that the Law Judge erred in formulating a hypothetical question for the vocational expert's consideration without attempting to account for Mrs. Viar's moderate difficulties in maintaining concentration, persistence, or pace. Despite having found that plaintiff experiences severe impairments on the bases of major depression and anxiety disorder, and that these problems result in moderate difficulties in maintaining concentration, persistence, or pace, the Law Judge asked the vocational expert only to consider that Mrs. Viar is limited to simple, routine tasks involving little or no interaction with the general public. (TR 1030). Stated differently, while the Law Judge included some of the work-related limitations identified by the state agency psychologists in the hypothetical, he omitted other limitations which would seemingly affect the performance of almost any work role. Thus, in opining that Mrs. Viar could perform work as a small parts assembler, mail clerk, laundry folder, and hospital products assembler, the vocational expert was not asked to consider the significance of moderate limitations in concentration, persistence, or pace in the performance of such work roles as would seemingly require sustained attention and concentration. Furthermore, assuming, as did the Law Judge, the accuracy of Dr. Niemeier's functional capacity assessment, the vocational expert was not asked to consider the interplay of moderate limitations in plaintiffs capacity to sustain an ordinary routine, perform ...


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